Vermont Certificate of Public Good (8-VT-c(1))
Under Vt. Stat. Ann. tit. 30, § 248 no company or person may begin site preparation for construction of an energy generation facility or electric transmission facility at any voltage, unless the Commission first finds that the project serves the public good and issues a CPG. Vt. Stat. Ann. tit. 30, § 248(a)(2)(A).The Commission conducts a CPG review pursuant to Vt. Stat. Ann. tit. 30, § 248. The Commission must find that the project promotes the general good of the state in order to grant a CPG. Vt. Stat. Ann. tit. 30, § 248.
Certificate of Public Good Process
8-VT-c.1 to 8-VT-c.2 — Submit Notice Letter to Affected Municipality and Regional Planning Commission
The developer must submit the proposed project plans, 45 days before filing a Petition for a CPG (Petition), notifying the affected municipal and regional planning commissions and municipal legislative bodies of the developer’s intent to submit a Petition to the Commission. Vt. Stat. Ann. tit. 30, § 248(f). tit. 30 ch.56 Vt. Code. R. § 5.402 (A). However, if the proposed project consists solely of the relocation of transmission facilities, the developer may submit the notice letter at least 21 days prior to filing a Petition. tit. 30 ch.56 Vt. Code. R. § 5.402 (A); Vt. Stat. Ann. tit. 30, § 248(g).
The project plans must include plans for construction of the project in sufficient detail to understand the overall proposed project, including but not limited to:
- Identification and analysis of aesthetic impact;
- Project plans, in as much detail as the developer can reasonably provide (including schematic and diagram depicting proposed structures);
- A description of how equipment and materials will be transported to the site; and
- Plans which indicate the approximate location of all proposed new infrastructure (e.g., transmission, roads, etc.) relative to the existing conditions.
For proposed transmission projects, the developer must also include an evaluation of alternatives to the proposed project and the reasons why those alternatives were rejected. tit. 30 ch.56 Vt. Code. R. § 5.402 (A)(4). The municipal and regional planning and the municipal legislative bodies may waive the 45-day notice requirement. Vt. Stat. Ann. tit. 30, § 248(f). Municipal and regional planning commissions affected by the proposed project must make recommendations, if any, to the Commission and to the developer at least seven (7) days before the CPG Petition filing with the Commission. Vt. Stat. Ann. tit. 30, § 248(f).
8-VT-c.3 to 8-VT-c.4 — Hold Public Hearing (If Applicable)
The municipal or regional planning commissions may hold a public hearing and provide an opportunity for public comment on the proposed project. Vt. Stat. Ann. tit. 30, § 248(f)(1).
8-VT-c.5 — Certificate of Public Good (CPG) Petition and Fee
The developer must submit a complete CPG Petition and fee to the Commission at the close of the 45-day filing notice. The Petition must, at minimum, include:
- A Cover Letter that:
- briefly describes the proposed project;
- whether the review under Vt. Stat. Ann. tit. 30, § 248(j) is requested; and
- includes the contact information (including address, phone number, and e-mail address) for the developer or representative.
- Notice of Appearance that includes the developer's relevant contact information.
Those persons listed in the notice of appearance are the only persons that may make formal filings with the Commission in that Docket. Petitions do not need to be filed by an attorney; however, the Commission, based upon state legal requirements, has limits on who may appear pro se. For example, a partnership may be represented by a partner, and a corporation, cooperative, or association may be represented by an officer thereof or by an employee designated in writing by an officer thereof. See CVR 30-000-001 § 2.201(B).
- Certificate of Service which lists all entities to whom the correspondence was sent and a statement that the correspondence has been sent to those entities (the filing itself);
- Pre-filed Written Testimony from a qualified witness or witnesses and exhibits. The need for specialized, expert testimony depends on the complexity of the proposed project and the nature and scope of the project’s impacts. For example, if the proposed project will impact a wetland, an environmental expert may be required to address that impact. The pre-filed testimony and accompanying exhibits must include:
- a description of the project and address the substantive criteria of Section 248(b). If the information requested is not applicable, the developer must include an explanation of why it is not applicable. Developers must address all of the criteria contained in Vt. Stat. Ann. tit. 30, § 248(f).
- the project description should provide a detailed description of the proposed project, in accordance with Draft Guide to Filing a Petition under Section 248, at 7-8. tit. 30 ch.56 Vt. Code. R. § 5.402(C)(d).
The Petition must also include:
- U.S. Geological Survey topographic map showing the location of the proposed project;
- An aerial photograph of the proposed project site that clearly marks existing structures and significant natural and manmade features when available, or an equivalent computer-generated image that provides similar detail;
- A site plan that includes:
- proposed improvements;
- existing topography at the site and proposed changes in grading;
- existing significant natural and man-made features (including but not limited to water bodies, wetlands, tree lines, buildings, and roads);
- a cross-section of the site;
- color photographs of the project site; and
- proposed measures to mitigate impacts of the proposed project.
- An index, organized according to the criteria of Vt. Stat. Ann. tit. 30, § 248(b), that identifies with specificity the prefilled evidence that addresses each criterion, including the incorporated criteria of Section 248(b)(5). This requirement is not necessary for projects petitioning for a Section 248(j) CPG. tit. 30 ch.56 Vt. Code. R. § 5.402(F)(2).
tit. 30 ch.56 Vt. Code. R. § 5.402 (C)(d). In addition, the developer must provide a copy of the completed fee form and the fee payment to the Vermont Agency of Natural Resources (ANR). Certificate of Public Good Application Fee Form.
8-VT-c.6— Provide Notice to Interested Parties
The developer must submit copies of the Petition materials, at the time of filing the Petition with the Commission, to the Attorney General and the Department of Public Service, and if applicable the Department of Health, Agency of Natural Resources, Historic Preservation Division, Agency of Transportation, Agency of Agriculture, Food and Markets and the chairperson or director of the municipal and regional planning s and the municipal legislative body for each town and city in which the proposed project will be located. Vt. Stat. Ann. tit. 30, § 248 (a)(4)(C).
In addition, pursuant to tit. 30 ch.56 Vt. Code. R. § 5.402 (B), the developer must provide notice of the proposed project to each adjoining property owner at the time that the Petition is filed with the Commission. An adjoining landowner is defined by tit.30 ch.56 Vt. Code. R. § 5.402(B)(2)(a)-(b).
This notice must include, at a minimum:
- A reference to the Commission's Guide to the Vermont Public Service Commission's Section 248 Process available on the Commission's website;
- A general description of the type and approximate location of the proposed project; and
- A statement that a Petition for approval is being filed with the Commission; and an identification of the locations at which the project plans and the Petition can be viewed, and the hours during which those documents may be viewed.
The developer must make a good faith effort to notify adjoining property owners by utilizing the certified grand list of property owners no more than 60 days prior to the date notice sent to adjoining property owners. tit. 30 ch.56 Vt. Code. R. § 5.402(B)(3).
8-VT-c.7 to 8-VT-c.9 — Review Petition Materials for Completeness
The Commission must notify the developer after making a completeness determination. If the Petition is not complete, the Commission must include a statement of the deficiencies in the notice. tit.30 ch.56 Vt. Code. R. § 5.402 (C)(4).
8-VT-c.10 to 8-VT-c.11 — Assign Docket Number
Once the Petition is considered complete, the Commission Clerk assigns a docket number to the Petition. Citizen’s Guide to Section 248, at 4.
The Commission then notifies the developer, the Department of Public Service and the Agency of Natural Resources (statutory parties) that a docket number has been assigned. Citizen’s Guide to Section 248, at 3.
8-VT-c.12— Review Application for Approval
The Commission reviews the certificate for approval.
8-VT-c.13 to 8-VT-c.14— Is the Proposed Project Limited in Size and Scope?
If the project is limited in size and scope, the developer may file a 248(j) Petition with the Commission for expedited CPG review. Vt. Stat. Ann. tit. 30, § 248(j). If the project is not limited in size and scope, then proceed to 8-VT-c.23.
8-VT-c.15 to 8-VT-c.19— Does the PUC Accept the 248(j) Petition?
If the Commission accepts the 248(j) Petition, then there is a 28-day public comment period on the petition. At the end of the comment period, if the commenters request conditions for approval, then the Commission provides the developer an opportunity to respond to comments. If the Commission rejects the 248(j) Petition, then proceed to 8-VT-c.23.
8-VT-c.20 to 8-VT-c.22— Does the PUC Determine there is a Significant Issue with the Petition?
After the developer responds to comments, the Commission assesses whether there is a significant issue with the 248(j) Petition. If the Commission determines that there is a significant issue with the 248(j) Petition then the Commission holds a public hearing on the 248(j) Petition.
If the Commission determines that the 248(j) Petition does not raise a significant issue according to the requisite criteria, and the public interest is satisfied by the Section 248(j) procedures, then the Commission may issue a Final Order making a CPG determination without holding public or evidentiary hearings. The Commission makes this determination on a case-by-case basis. Vt. Stat. Ann. tit. 30, § 248(j).
If the Commission determines there is no significant issue with the 248(j) Petition, then proceed to 8-VT-c. 34. Vt. Stat. Ann. tit. 30, § 248(j).
8-VT-c.23 to 8-VT-c.24 — Provide Notice of a Pre-Hearing Conference
If the project is not limited in size and scope, the Commission must provide notice of the pre-hearing conference, required under a formal CPG Petition assessment process. At the pre-hearing conference, the Commission and the formal parties set the docket schedule, identify major issues, and determine how the docket will be managed.
The docket schedule provides dates for a public hearing, site visit, a deadline for motions to intervene, discovery, the filing of pre-filed testimony by other parties (if any), as well as the dates for technical (evidentiary) hearings and briefing. Depending on the workload of other parties and the potential impacts associated with the proposed project, a fully litigated schedule can take more than six (6) months. Draft Guide to Filing a Petition under Section 248, at 3; Citizen’s Guide to Section 248, at 4; CVR 30-000-01 § 2.212.
8-VT-c.25 — Pre-hearing Conference Memorandum
Following the pre-hearing conference, the Commission must issue a Pre-hearing Conference Memorandum (Memorandum). The Memorandum addresses the issues presented and discussed at the pre-hearing conference and a service list. A service list is a list of all parties and interested persons. Citizen’s Guide to Section 248, at 4.
8-VT-c.26 — Conduct Site Visit (If Applicable)
The Commission may conduct one or more site visits to view the location of the proposed project. The site visit typically include a discussion of the following matters:
- A description of the proposed project and its location(s);
- A viewing of the existing conditions at the location(s) of the proposed project; and
- An explanation of how the existing conditions would be altered by the proposed project.
- Identification of relevant landscape features;
- Discussion of how such landscape features have affected or potentially should affect the project design and location;
- Identification of and visits to potential alternative locations for the proposed project; and
- Any other relevant matters for which a first-hand viewing of the site(s) may assist in understanding the issues before the Commission.
Observations and facts from the site visit are not considered as evidence unless the Commission, on its own motion or on the request of a party, specifically enters them into the evidentiary record. tit. 30 ch.56 Vt. Code. R. § 5.405; Draft Guide to Filing a Petition under Section 248, at 3; Citizen’s Guide to Section 248, at 5.
8-VT-c.27 to 8-VT-c.28 — Publish Notice of Public Hearing
The Commission must hold a nontechnical public hearing on each Petition in at least one county in which any portion of the proposed project will be located. Vt. Stat. Ann. tit. 30, § 248 (a)(4)(A).
The Commission must publish notice of the hearing on the Commission’s website for at least twelve (12) days before the day appointed for the hearing. The Commission must also publish notice of the hearing in a newspaper of general circulation in the county or counties in which the proposed project will be located. The notice must include an internet address where more information regarding the proposed project may be viewed. Vt. Stat. Ann. tit. 30, § 248(a)(4)(D).
The Commission may ask the developer (petitioner) to provide a brief description of the proposed project at the beginning of the public hearing in order for those attending to become more familiar with the proposed project. Citizen’s Guide to Section 248, at 5.
8-VT-c.29 — Comment on Application
Any interested person may provide written and/or oral comment on the proposed project during the public hearing. Oral comments are transcribed by a court reporter for later reference and become part of the docket’s public file. While these comments do not become part of the evidentiary record, public comments play an important role by raising new issues or offering perspectives that the Commission should consider and ask parties to present evidence on. Citizen’s Guide to Section 248, at 5.
In addition, the public may submit written comments to the Commission electronically or by regular mail. These comments are treated the same way as public comments made during the public hearing. Citizen’s Guide to Section 248, at 5.
8-VT-c.30 — Initiate Discovery
The developer and other interested parties may ask about pre-filed testimony and exhibits provided. The parties may either conduct discovery in written (interrogatories) or oral (depositions) form. The provisions of Vermont Rules of Civil Procedure apply. Citizen’s Guide to Section 248, at 3; CVR 30-000-01 § 2.214.
8-VT-c.31 — Hold Technical Hearing
The Commission must hold a technical (evidentiary) hearing regarding the proposed project in accordance with the date decided at the pre-hearing conference. Vt. Stat. Ann. tit. 30, § 248(a)(4)(B). At the hearing, parties are expected to submit proposed findings of fact under each of the Section 248 criteria (Vt. Stat. Ann. tit. 30, § 248 (b)(1)-(11)) together with a legal brief relating to any issues of law raised by the filing. Vt. Stat. Ann. tit. 30, § 248 (a)(4)(B).
8-VT-c.32 to 8-VT-c.34 — Is the Docket Heard by a Hearing Officer?
If the case is heard by a Hearing Officer and not the full Commission, the Hearing Officer recommends a proposal for decision to the Commission. Parties have an opportunity to submit comments and request oral argument on the proposal for decision. The proposal for decision and any comments on it are submitted to the members of the Commission for review and issuance of a final order. Citizen’s Guide to Section 248, at 10.
8-VT-c.35 to 8-VT-c.36 — Does the Commission approve the CPG?
Once the technical (evidentiary) hearing is over, the Commission issues a decision on the case. The Commission must base the Final Order on the evidentiary record, findings of fact under the Section 248 criteria as well as conclusions of law. Citizen’s Guide to the Vermont Public Service Commission’s Section 248 Process, at 10.
If the Commission does not hear the case, the Commission considers the proposal for decision and any comments on it. Then the Broad may adopt or modify the proposal for decision in a Final Order. If the Commission hears the case directly, the Commission issues a final decision, without the need for the intermediate step of a proposal for decision. If the project is approved, the Commission issues a CPG. Citizen’s Guide to the Vermont Public Service Commission’s Section 248 Process, at 10.
The Commission must give due consideration to any recommendations filed by municipal and regional planning at least seven (7) days prior to the intended filing date and any revised recommendations filed within 45 days after the date that the Petition is filed with the Commission pursuant to tit.30 ch.56 Vt. Code. R. § 5.402(A)(1)-(2). Citizen’s Guide to the Vermont Public Service Commission’s Section 248 Process, at 10.
8-VT-c.37 — Appeal Decision (If Applicable)
Any interested person, including the developer may appeal the CPG decision within thirty (30) days of the determination by the Commission to the Vermont Supreme Court. Vt. Stat. Ann. tit. 30, § 234; Draft Guide to Filing a Petition under Section 248, at 4.
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- Vermont – Vt. Stat. Ann. tit. 30, §§ 248 et seq., New gas and electric purchases, investments, and facilities, certificate of public good
- Vermont – Vt. Stat. Ann. tit. 30, §§ 234 et seq., Appeal
- Vermont – tit.30 ch.56 Vt. Code. R. et seq., Requirements for Petitions to Construct Electric and Gas Facilities